Volume 24 Issue 4 Article 1
1997
Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961
Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961
William N. Eskridge Jr. 1@1.com
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Recommended Citation Recommended Citation
William N. Eskridge Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St. U. L. Rev. 703 (1997) .
https://ir.law.fsu.edu/lr/vol24/iss4/1
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William N. Eskridge, Jr.
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Recommended citation: William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid
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WILLIAM N. ESKRIDGE, JR.*
INTRODUCTION... 703
I. TERROR: THE STRAIGHT-THREATENING CLOSET... 708
A. Criminal Law: Hunting the Homosexual... 710
1. Laws to Suppress and Erase the Sex Pervert... 711
2. Flushing Out the Homosexual: Spies, Decoy Cops, Raids... 717
3. Anti-Homosexual Panics and Manias... 724
B. Employment Law: Subversion, Blackmail, and Immorality in Government Service... 733
1. Supermania: The Creation of Federal Anti-Homosexual Exclusions, 1947-1952... 733
2. The Federal Witch Hunts, 1953-1961... 742
3. Witch Hunts at the State Level... 746
C. State Suppression of Homosexual Association and Expression... 753
1. Surveillance and Harassment... 754
2. Censorship of Homophile Media... 757
3. Closing Down Homosexual Socialization... 761
II. SURVIVAL: THE MUTUALLY PROTECTIVE CLOSET... 766
A. Substantive Privacy (Criminal and Military)... 773
1. Legislative Policy: Refocusing State Criminal Law... 773
2. Judicial Policy: The Rule of Lenity... 777
3. Military Policy: The Crittenden Reevaluation... 781
B. Procedural Privacy (Criminal)... 783
1. Due Process Protections for the Homosexual Defendant... 783
2. Judicial Monitoring of Police Tactics... 785
3. Evidentiary Rules... 788
C. Substantive and Procedural Privacy (Civil)... 791
III. RESISTANCE: THE GAY-THREATENING CLOSET... 795
A. Freedom of Association (The Homophile Organizations and Bar Cases).. 800
B. Freedom of Expression and Press (Homophile Publications and Obscenity) 804 C. Equal Treatment (The New Wave of Employment Cases)... 809
CONCLUSION: THE DISCOURSES OF PRIVACY AND EQUALITY... 811
INTRODUCTION
The sacking of Sumner Welles was a harbinger. A cold, brilliant patrician, Welles was a schoolmate and lifetime chum of President Franklin D. Roosevelt.1 Roosevelt appointed Welles Under Secretary
of State, a position from which Welles essentially controlled United
* Professor of Law, Georgetown University Law Center. This Article is the pub-lished version of the Mason Ladd Lecture, delivered at the Florida State University Col-lege of Law on April 1, 1996. I am grateful to Ann McGinley and Jeff Stempel for com-ments on the lecture and later drafts of this Article. I also thank the law library staff at the Florida State University College of Law for assisting me with locating many Florida sources, and the staff of the Florida Department of State, Division of Archives, for facili-tating my use of the Johns Committee papers, series 1486.
States foreign policy.2 In 1941, FBI Director J. Edgar Hoover
sup-plied Roosevelt with information pertaining to Welles’s homosexual activities,3 but Roosevelt was unfazed. Armed with complaints that
Welles had solicited sex from black railroad porters, U.S. Ambassa-dor to France William Bullitt argued to the President that
the maintenance of Welles in public office was a menace to the country since he was subject to blackmail by foreign powers [which] had used crimes of this kind to get men in their power; and that . . . a terrible public scandal might arise at any time which would undermine the confidence of the country in him, the Presi-dent.4
According to Bullitt, Secretary of State Cordell Hull “considered Welles worse than a murderer,” and “morale in the Department of State and the Foreign Service was being ruined by the knowledge that a man of the character of Welles was in control of all appoint-ments and transfers.”5 On the eve of war with Hitler, it was
impera-tive to rid the State Department of “criminals” like Sumner Welles, argued Bullitt.6 Roosevelt, fully aware of Welles’ sexual crimes,
nonetheless refused to believe that any newspaper would publish such a scandal.7 Only after Bullitt supplied Republican Senator
Ralph O. Brewster of Maine with information pertaining to Welles’s notorious homosexual activities, and Brewster threatened to launch a Senate probe,8 did Roosevelt ask Welles for his resignation.9
The firing of Welles, whom Bullitt described as Roosevelt’s “Achilles Heel,”10 reflected the emergence of the closet as the residing
place for homosexuals. Roosevelt and Welles assumed that Welles could lead a “double life”—that Sumner Welles the criminal was seg-regable from Sumner Welles the friend and public servant—as long as his homosexuality remained closeted in secrecy. Prior to the 1940s, same-sex intimacy was literally unspeakable, as the homo-sexual and society conspired to keep the matter secret. By the 1940s, however, the edges separating the two halves of the double life were eroding, as greater numbers of homosexuals transgressed the lines separating public and private spheres and more heterosexuals be-came curious about the secret life, either to condemn it, to explore it,
2. See id. at 130-31; see also David K. Johnson, “Homosexual Citizens”: Washington’s Gay Community Confronts the Civil Service, WASH. HIST., Fall-Winter 1994-95, at 50.
3. See GELLMAN, supra note 1, at 236-37.
4. FOR THE PRESIDENT: PERSONAL AND SECRET, CORRESPONDENCE BETWEEN FRANKLIN D. ROOSEVELT AND WILLIAM C. BULLITT 513 (Orville H. Bullitt ed., 1972).
5. Id.
6. Id. at 513-14. 7. Seeid. at 513. 8. Seeid.
or both. The erosion required the homosexual to decide whether to openly admit homosexuality or to keep the private life closeted and separate from the public one for fear that exposure of the former could destroy the latter.
While the closet has become the classic metaphor for homosexual secrecy,11 it is of surprisingly recent origin, not gaining currency
un-til after World War II. The earliest reference I have found is in John Burns’ 1949 Lucifer with a Book, whose characters “come out of the cloister” and into the life.12 Thus, the idea of coming out of the
clois-ter began as a metaphor for a homosexual’s entry into the under-ground gay subculture, not unlike the “coming out” of a debutante into society.13 The 1950s invoked the closet as the place where
pri-vate skeletons and personal secrets are hidden.14 By the 1960s some
gay people were using “coming out” as an expression for the homo-sexual’s sharing her or his own private skeleton in the closet with straight people. Whereas homosexuals confronted the possibility of coming out of the closet, some heterosexuals were obsessed with casting them out. To fight against “homosexual recruiting of youth,” Florida’s Legislative Investigation Committee wrote in 1964, “the closet door must be thrown open and the light of public understand-ing cast upon homosexuality.”15
These references (there are many others) illustrate not only how slowly the vocabulary of the closet was worked out, but also how the closet can be either protective or threatening.16 For the homosexual, it
could be an embracing even if temporary cocoon, or it could be a scary prison. For heterosexuals, the closet likewise could have two different kinds of meanings, either a place where skeletons are
11. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET (1990); Robert Dawidoff, In My Father’s House Are Many Closets, in CHRISTOPHER STREET, Apr. 1989, at 28-41.
12. ROGER AUSTEN, PLAYING THE GAME: THE HOMOSEXUAL NOVEL IN AMERICA 110 (1977) (quoting John Burns discussing Lucifer with a Book). The central character, Guy Hudson, is a boys’ school instructor of intense but ambiguous sexuality. The only clue to his preferences is a lewd Renaissance print of a man having sex with another man and a woman. This print is stored in Hudson’s dormitory closet. See JOHN HORNE BURNS, LUCIFER WITH A BOOK 105-06 (1949). Other characters make homosexual advances to Hudson by seeking to bring the print out of the closet. See, e.g., id. at 132-33.
13. See GORE VIDAL, THE CITY AND THE PILLAR 154 (rev. ed. 1965). “I’ve been invited to a faggot party,” matinee idol Ronald Shaw told Jim Willard. “I’ll take you. It can be your coming-out party in New York.” Id.
14. See Marlin Prentiss, Are Homosexuals Security Risks?, ONE, Dec. 1955, at 4. Prentiss explained the ironies of denying homosexuals security clearances: “for where among us breathes there a man—or woman—who does not have his own personal Achilles heel—his own private skeleton in the closet?” Id.
15. FLA. LEGIS. INVESTIGATION COMM., HOMOSEXUALITY AND CITIZENSHIP IN FLORIDA 14 (1964) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, Tallahas-see, Fla.).
cluded from view so that they do not disturb household harmony or, more sinisterly, a place within the home where lurk creatures who could break out and wreak havoc. Providing a spatial analogue to Bullitt’s Achilles heel metaphor, Kenji Yoshino likens the Trojan Horse to such a closet.17 The theme of this Article is how post-World
War II American law helped create the closet and how the closet’s meaning evolved—from threatening to protective for heterosexuals at the same time it was changing from protective to threatening for homosexuals.
The closet took form as a response to three legal conundrums in the 1940s and 1950s: the increasing use of sexual orientation as an important regulatory category, which contributed to an obsessional discourse about minority sexual orientation; the insistence of legal republicans to command state apparatus to hunt down and destroy deviant minorities, especially homosexuals, countered by the insis-tence of legal libertarians that homosexuals should be left alone; and the conflicting desires of homosexuals to hide behind traditional lib-ertarian barricades while at the same time becoming more inclined to make their presence known in republican public culture. People of minority sexual orientations hid in the closet for reasons of both ter-ror (to avoid annihilation) and social accommodation (to pay the price of toleration). But whereas homosexuals before 1940 were re-flexively willing to segregate their double lives and keep their gay one a secret, those after World War II were more ambivalent about the segregation, and some openly violated it. Conversely, hetero-sexuals before World War II were generally willing to let secret ho-mosexual lives pass unnoticed, but after the war found the secret lives more threatening and sought to expose them. The idea of the closet, therefore, is not just the idea that homosexuality must be se-cret; that was entailed in the double life. What is distinctive about the political economy of the closet is that both homosexuals and het-erosexuals regarded the secrecy with ambivalence. All of us were at-tracted both to the idea of keeping homosexuality hidden and to the opposite idea that the closet door must be thrown open and homo-sexuality exposed to view and discussion.
The object of this Article is to explore the legal regulation of same-sex intimacy between 1946 and 1961 from the perspective of the closet. Although the Article seeks to explore national phenomena, much of its narrative will focus on Florida as a microcosm of the larger story.18 Part I traces in detail the regulatory moves made by
17. See generally Kenji Yoshino, The Trojan Horse and AIDS (Feb. 1996) (Yale Law School essay, on file with author) (drawing from Monique Wittig, The Trojan Horse, in ESSAYS ON WOMAN (Lucy Gelber & Romaeus Leuven eds., Freda Mary Oben trans., 1987)).
an America fearful, as Bullitt and Hoover were, of these skeletons in its closet, seemingly determined not only to deny homosexuals any public space, but also to pry them out of their closets and erase them. Part II explores the failure of this regulatory effort, thwarted in part by doctors, prosecutors, and trial judges who worked from the prem-ises of privacy jurisprudence and offered the mutually protective closet as a compromise: we won’t ask about your sexuality, you don’t tell us about it. Both witch-hunters like Joe McCarthy (Part I) and tolerant liberals like Learned Hand (Part II) contributed in the 1950s to an apartheid of the closet. This was a regime in which ho-mosexuals were segregated from civilized society, not physically, but psychically and morally. So long as they confined their expressions and actions to a mutually protective closet, homosexuals were promised a regime of “separate but equal” toleration from the liber-als and legal protection from the witch hunters.
Just as racial apartheid was an unstable regime, however, so too was the apartheid of the closet, as I explore in Part III. From conven-tional society’s point of view, there were always those who viewed the closet as threatening, containing predatory enemies. From the homophile point of view, the closet was always a confinement—really a badge of inferiority—as well as a refuge, and straight society’s ten-dency to pry open the closet door left the homosexual with the worst of both worlds: neither privacy nor integrity. The never-ending mas-querade of the closet made it impossible for the homosexual to have integrity, and yielded a self-fulfilling prophecy whereby homosexuals were persecuted, in part, because they were untrustworthy and sus-ceptible to blackmail, precisely the charges leveled against Sumner Welles by Bullitt.
Law contributed critically to the failure of the mutually protective closet. While the efforts of the witch hunters certainly contributed to the persuasiveness of liberals’ mutually protective closet, they also destabilized it by their episodic successes, which came irregularly and unexpectedly. Also, appellate judges typically acquiesced in the terror when push came to shove, making the mutually protective closet less credible. Not least important, the ability of the witch hunters to “out” people created a class of citizens who were already excluded from the mutually protective closet and therefore inclined to be critical and destabilizing. In short, the privacy jurisprudence of
the 1950s gave homosexuals a security that they soon questioned, and extracted from them a dishonesty that became increasingly in-tolerable.
The success of free speech jurisprudence in the 1950s was also de-stabilizing to the mutually protective closet. Developed in response to the state’s effort to suppress political and civil rights dissidents (namely, Communists and African-Americans), free speech jurispru-dence became a means by which sexual and gender dissidents (such as homosexuals and cross-dressers) could claim public space for themselves. The American free speech tradition then being created was in favor of robust debate, and in the sexual sphere that debate helped create a homosexual “minority.” Homophile publications, from the Kinsey reports to lesbian pulp romances, were the first evi-dence many gay people had that they were not accidental monsters. Homophile suppression, from the armed forces’ exclusion of homo-sexuals to censorship campaigns, helped make sexual deviance sexy to untold numbers of Americans whose homoerotic impulses were stirred and sometimes awakened by the orgasmic hysteria of the witch hunters.
I. TERROR: THE STRAIGHT-THREATENING CLOSET
Following World War II, conventional society sought to eliminate homosexuality in the United States. Earlier, popular consciousness had designated the homosexual a focal point for American anxieties about sex, feminism, and gender.19 In the mainstream imagination,
the homosexual stereotypes of the mannish dyke and the effeminate fairy combined unspeakable sexual perversion and transgression of gender roles with moral and psychological degeneracy. Some people believed homosexuals ascertainable by stigmas such as derange-ment, gender-crossing manner or attire, or physical deformity. Some psychiatrists diagnosed homosexuals as “sociopathic” or “psycho-pathic” personalities and deemed them incapable of controlling their sexuality. The concept of the predatory homosexual crystallized as an idée fixe of the homosexual as beyond self-control and thus an as-sured child molester. The 1930s witnessed a homosexual panic in many urbanized states that had sizable homosexual subcultures, particularly New York, California, New Jersey, Pennsylvania, Michigan, and Ohio. World War II interrupted this panic but laid the foundation for its subsequent intensification.20
19. See William N. Eskridge, Jr., Law and the Construction of the Homosexual: American Regulation of Same-Sex Intimacy, 1880-1946, 82 IOWA L. REV. (forthcoming 1997); Estelle Freedman, “Uncontrolled Desires”: The Response to the Sexual Psychopath, 1920-1960, 74 J. AM. HIST. 83, 85-86 (1987).
The War created unprecedented economic opportunities for women, including large-scale service in the military, and threw men as well as women into same-sex settings for extended periods. With the absence of male companions on the homefront, women formed close, and sometimes erotic, relationships with one another. Serv-icemen likewise turned to one another for sexual companionship. Thus, World War II facilitated the abandonment of traditional gen-der and sex roles previously consigen-dered sacrosanct, and fueled the postwar expansion of homosexual urban subcultures. Although aware of the deviation, the state frequently looked the other way or handled situations with leniency. After the war, however, both soci-ety and the state responded more harshly. Reacting to a period of sexual experimentation and gender bending, America renormalized with a vengeance. Government reaffirmed and protected traditional gender roles and severely stigmatized deviance from heterosexuality. The postwar baby boom confirmed societal subscription to tradi-tional heterosexual roles and helped erase memories of wartime ab-errations. Many attracted to the same sex retreated to what soon came to be known as the closet, sometimes even marrying a member of the opposite sex. Thus, for the homosexual, the postwar closet could serve as a potential refuge.
The state destabilized the potential equilibrium whereby homo-sexuals would hide in the closet in exchange for society’s promise not to open the door. Many anti-homosexual Americans, including clos-eted homosexuals,21 viewed the closet as a Trojan Horse whose
se-cluded occupants were a fifth column threatening to destroy the United States, morally and politically. As Florida’s Legislative In-vestigation Committee wrote in 1964, “if we don’t stand up and start fighting, we are going to lose these battles in a very real war of mo-rality.”22 The anti-homosexuals mobilized the forces of state power in
the 1950s to “throw open” the “closet door” (as the Committee put it) and to destroy homosexuality before it destroyed the country. Homo-sexual panic thus paralleled Communist panic, and the two inter-mixed, during which charges of homosexuality were confused with or
COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES, 1940-1970 (1983) (discussing the history of homosexuality in American Society); George Chauncey, Jr., The Postwar Sex Crime Panic, in TRUE STORIES FROM THE AMERICAN PAST 160 (William Graebner ed., 1993) (discussing the “sex crime panic” that occurred after World War II).
21. See, e.g., DAVID M. OSHINSKY, A CONSPIRACY SO IMMENSE: THE WORLD OF JOE MCCARTHY 310-11, 328-29 (1983) (reactionary Senator McCarthy, long a bachelor, ru-mored to be homosexual); NICHOLAS VON HOFFMAN, CITIZEN COHN (1988) (McCarthy’s chief counsel Roy Cohn was a closeted homosexual); ANTHONY SUMMERS, OFFICIAL AND CONFIDENTIAL: THE SECRET LIFE OF J. EDGAR HOOVER (1993) (FBI Director Hoover was a cross-dresser and possible homosexual; his only emotionally intimate relationship was with his longtime companion Clyde Tolson).
even dominated charges of political subversion. Even more than the despised Communists, homosexuals were like the “pod people” in Don Siegel’s 1950s movie The Invasion of the Body Snatchers: they were weird aliens who could pass as humans and whose goal was to prey on Americans and turn them into pod people. Even more than conquest by an external enemy, the American nightmare of the 1950s was conquest from within—a nation of pod people (homosexu-als) who had taken over the bodies of real people (heterosexu(homosexu-als). As a consequence of that fear, the homosexual’s closet became her prison, a place where she was forced to be but which could be in-vaded at any time by state officers who could erase her at their whim.
This systematic regulation operated differently on women than on men. Although lesbians were increasingly subjected to criminal ar-rests in the 1950s, most criminal laws were largely enforced against male homosexuals, for they socialized more publicly and engaged in more open sexual solicitations. An exception to this generalization were laws against cross-dressing, which were used as an excuse for police to harass butch lesbians. Also, lesbians, like gay men, suffered when their bars and social spaces were harassed by raiding vice squads or the liquor regulatory gendarmerie. Although they were less likely to be arrested, the collateral civil consequences of arrest operated more severely on lesbians, who were more vulnerable to loss of jobs or even children because of sexual allegations. Women employed in the military were most severely harmed by the armed forces’ homosexual exclusion because it interacted with and rein-forced male personnel’s hostility toward women who performed tra-ditionally male occupations. The suppression of homosexual ideas and culture affected both men and women, but also may have had a disproportionate effect on straight as well as lesbian women because it deprived women of important feminist ideas, literature, and role models.
A. Criminal Law: Hunting the Homosexual
A comprehensive criminal regime for regulating sexual intimacy was in place well before World War II.23 Nineteenth-century state laws
prohibiting sodomy, public lewdness, and indecency were readily ap-plicable to same-sex intimacy, and every state had such statutes by 1946. Most states and municipalities also had anti-prostitution laws
that prohibited lewd vagrancy, disorderly conduct, or sexual solicita-tion. These laws were applied to homosexuals and were sometimes updated to target rather than simply include sexual deviants. Addi-tionally, many municipalities and a few states such as New York and California prohibited cross-dressing. Such laws were deployed against butch lesbians and female impersonators who appeared in public.
With soldiers (mostly men) and civilians (mostly women) thrust into homosocial environments with intense emotional bonding, World War II created unprecedented opportunities for same-sex in-timacy.24 Many Americans, exposed to homosexual intimacy during
the war, flocked to urban subcultures that existed before the war but flourished afterwards. The increased prominence of gay subcultures developed as America was renormalizing around the breadwinner-husband/housekeeper-wife-based family, and an anti-homosexual reaction ensued that lasted half a generation. Continuing a trend pronounced before World War II, criminal regulation focused on the sexual psychopath and child molester; the homosexual epitomized both demons. Reacting against the temporary aberrations tolerated during World War II, the criminal law aggressively hunted the ho-mosexual. In many jurisdictions where homosexual subcultures had been prominent before the war, elaborate bureaucracies and vice squads carried out ambitious efforts to suppress homosexuality more systematically. In many jurisdictions where such subcultures had not been prominent until after the war, anti-homosexual “witch hunts” allowed communities to act out their synergistic concerns with children’s sexuality, sexual deviation, and male aggression.
1. Laws to Suppress and Erase the Sex Per vert
In the mid-twentieth century, the District of Columbia (District) possessed a schizophrenic character: on the one hand it had a long-standing and thriving gay subculture, but on the other it was a sleepy southern city whose subculture could not compare with that of New York or Los Angeles. At war’s end, the District regulated sexual perversion by criminalizing public indecent exposure, “inviting” per-sons for immoral purposes, and public disorderly conduct.25 Police
arrested or detained scores of men each year for sexual overtures pursuant to these statutes and for common-law sodomy, yet the postwar Congress, and many state legislatures, found this degree of
24. See D’EMILIO, supra note 20, at 24-25.
regulation insufficient. The congressional response reflected similar moves by state legislatures all over the country. All these bodies were awakened to the threat of homosexuals to the nation’s per-ceived security.
To begin with, sexual offense laws had holes that Congress plugged after the war. Unlike the states, the District had no law prohibiting anal or oral sex. Originally, the District police used their common-law authority to arrest men on sodomy charges, but in 1948 Congress enacted the Miller Act26 to remedy problems with the
com-mon law. The impetus for the Miller Act was not concern for just sodomy, but child molestation. Estelle Freedman has documented the course of the nation’s mania concerning child molestation, which commenced in the 1930s and reemerged with a vengeance after World War II.27 Characteristically, FBI Director J. Edgar Hoover
fanned much of the hysteria. In his article, How Safe Is Your Daug h-ter?, Hoover observed that “[t]he most rapidly increasing type of crime is that perpetrated by degenerate sex offenders.”28 He
contin-ued, chillingly: “Should wild beasts break out of circus cages, a whole city would be mobilized instantly. But depraved human beings, more savage than beasts, are permitted to rove America almost at will.”29
The press fanned these flames, and although stories like Hoover’s pointed to molestation of girls, “girl-molesting sex pervert” melded in the popular imagination with “boy-molesting sex pervert.” Conse-quently, police attention focused disproportionately on homosexual men even when victims of sex crimes were girls.30
Consistent with these concerns, the Miller Act’s new sodomy pro-vision carried a higher penalty—incarceration up to twenty rather than ten years—if the sodomy victim was younger than sixteen years of age.31 In addition, the statute created new crimes of indecent
ex-posure to children of either sex younger than age sixteen and “inde-cent liberties” with such children.32 These changes reflected the
heightened fear that homosexual adults turned children into
26. Ch. 428, 62 Stat. 346 (1948).
27. See Freedman, supra note 19; see also Chauncey, supra note 20.
28. J. Edgar Hoover, How Safe Is Your Daughter?, AM. MAGAZINE, July 1947, at 32. 29. Id.
30. See Freedman, supra note 19, at 94. The article discusses this 1946 letter from one homosexual man to another after a child murder in Chicago:
I suppose you read about the kidnapping and killing of the little girl in Chi-cago—I noticed tonight that they “thought” (in their damn self-righteous way) that perhaps a pervert had done it and they rounded up all the females [ef-feminate homosexuals]—they blame us for everything and incidentally it is more in the limelight everyday—why they don’t round us all up and kill us I don’t know.
Id.
sexuals not only by sodomizing them, but also by taking other sexual liberties with them. Following Congress’ lead, many states similarly revised their sodomy laws to impose more significant penalties on homosexuals who committed sodomy or other “lewd” conduct with minors.33 From the 1940s through the early 1960s, no fewer than
twelve states enacted statutes criminalizing the taking of indecent liberties or engaging in lewd behavior with children under specified ages.34 In 1943, Florida designated it a felony to fondle a girl younger
than age fourteen “in a lewd, lascivious or indecent manner,”35 and
in 1951 (at the apex of the anti-homosexual terror), expanded the felony to include the lewd fondling of a boy under age fourteen.36
Like the Miller Act, Florida’s child molestation statutes reflected not only a concern that children’s sexuality be protected, but also the belief that sexual corruption could occur beyond vaginal, anal, and oral intercourse.
The biggest perceived failure of sex offender laws was that the states had no comprehensive plan to deal with the offender after his arrest. Usually perpetrators paid a fine or served a short jail sen-tence. Before World War II, Illinois, Michigan, Minnesota, and Cali-fornia enacted special laws for treatment of “sexual psychopaths,” which the Supreme Court provisionally upheld in 1940.37 The Miller
Act’s Title II included a “sexual psychopath” provision, essentially adapted from the Minnesota statute.38 Under this law, a U.S.
Attor-ney’s office could bring a proceeding against a person believed to be a sexual psychopath, which was defined as
a person, not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his or her sexual impulses as to be dangerous to other persons because
33. See, e.g., CAL. PENAL CODE § 288 (West 1956) (repealed 1976) (authorizing a life sentence for any defendant who performs anal or oral sex with children under the age of 14).
34. Arizona, Delaware, Georgia, Idaho, Illinois, Kentucky, Louisiana, Minnesota, Missouri, North Carolina, Texas, and Washington. Typical of these was an enactment by the Texas Legislature:
[W]hoever shall use his mouth on the sexual parts of another human being for the purpose of having carnal copulation, or who shall voluntarily permit the use of his own sexual parts in a lewd or lascivious manner by any minor, . . . shall be confined in the penitentiary or not less than two (2) nor more than fif-teen (15) years.
Act effective Aug. 9, 1943, ch. 112, § 1, 1943 Tex. Gen. Laws 194, 194 (West) (repealed 1983).
35. Act effective June 10, 1943, ch. 21974, § 1, 1943 Fla. Laws 583, 583-84 (current version at FLA. STAT. § 800.04 (1995)) .
36. See Act effective May 11, 1951, ch. 26580, § 1, 1951 Fla. Laws 234, 234.
37. See Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 277 (1940) (up-holding Minnesota’s law against “psychopathic personalities”). For a list of these and other sexual psychopath statutes enacted by 1961, see infra Appendix 4.
he or she is likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of his or her desire.39
If determined to be a sexual psychopath, “the court shall commit him or her to an institution to be confined there until . . . an appropriate supervisory official finds that he or she has sufficiently recovered so as to not be dangerous to other persons.”40 If originally charged with
a crime, the defendant then faced criminal proceedings upon dis-charge.
Statutes regulating or just studying sexual offenders constituted a national craze after World War II. Eleven states established legis-lative study commissions to evaluate existing laws applicable to sex offenders and to suggest statutory changes.41 Reports from
Califor-nia, Illinois, New Jersey, and New York pessimistically suggested that these statutes did not contribute anything to the war against child molestation.42 This caused the anti-homosexual craze to
sub-side. Nonetheless, by the late 1950s, laws providing indeterminate sentences and psychiatric treatment for sex offenders had been adopted in the District and twenty-seven states, including all the ur-banized jurisdictions of the East and West Coasts and the Midwest.43
The District’s statute represented others with few exceptions. Only five jurisdictions followed Congress in allowing such proceedings to be brought without a pending criminal charge, while most required
39. D.C. CODE ANN. § 22-3503(1) (1948). 40. Id. § 22-3508.
41. See CAL. DEP’T OF MENTAL HYGIENE, FINAL REPORT ON CALIFORNIA SEXUAL DEVIATION RESEARCH (1954); FLA. LEGIS. INVESTIGATION COMM., supra note 15; ILL. COMM’N ON SEX OFFENDERS, REPORT OF THE ILLINOIS COMMISSION ON SEX OFFENDERS TO THE 68TH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS (1953); GOV.’S STUDY COMM’N ON THE DEVIATED CRIMINAL SEX OFFENDER, REPORT (Mich. 1951); MINN. LEGIS. INTERIM COMM’N ON PUB. WELFARE LAWS, SEX PSYCHOPATH LAWS REPORT (1959); INTERIM COMM’N OF THE STATE OF NEW HAMPSHIRE TO STUDY THE CAUSE AND PREVENTION OF SERIOUS SEX CRIMES, REPORT (1949); PAUL W. TAPPAN, N.J. COMM’N ON THE HABITUAL SEX OFFENDER, THE HABITUAL SEX OFFENDER: REPORT AND RECOMMENDATIONS OF THE COMMISSION ON THE HABITUAL SEX OFFENDER (1953); BERNARD C. GLUECK, RESEARCH PROJECT FOR THE STUDY AND TREATMENT OF PERSONS CONVICTED OF CRIMES INVOLVING SEXUAL ABERRATIONS, FINAL REPORT (1955) (New York) [hereinafter N.Y. RESEARCH PROJECT]; OR. LEGIS. INTERIM COMM. TO STUDY SEX CRIME PREVENTION, REPORT (1956); JOINT STATE GOV’T COMM’N TO THE GEN. ASSEMBLY OF THE COMMONW. OF PA., SEX OFFENDERS: A REPORT OF THE JOINT STATE GOVERNMENT COMMISSION TO THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENNSYLVANIA (1951); COMM’N TO STUDY SEX OFFENSES TO THE GOV. AND THE GEN. ASSEMBLY OF VA., THE SEX OFFENDER AND THE CRIMINAL LAW (1951) (all on file with author).
42. See CAL. DEP’T OF MENTAL HYGIENE, supra note 41; ILL. COMM’N ON SEX OFFENDER, supra note 41; N.J. COMM’N ON THE HABITUAL SEX OFFENDER, supra note 41; N.Y. RESEARCH PROJECT, supra note 41.
conviction of a sex offense.44 Few jurisdictions provided as many
pro-cedural guarantees as Congress.45 Although the child molestation
panic operated to justify sexual psychopath laws, and states like Florida limited their statutes to sex crimes involving children,46 the
District and other states did not so limit their laws.47 In practice,
these laws were typically applied to relatively minor criminals, not rapists or child molesters. Paul Tappan, author of the celebrated New Jersey Report and Recommendations of the Commission on the Habitual Sex Offender, found that the first adjudications of sexual psychopaths involved crimes such as solitary but public masturba-tion, the following of a white woman by a person of color, and the passing of bad checks by a passive homosexual.48 Almost half of the
first 100 sexual psychopaths adjudicated in New Jersey were con-victed of lewdness (homosexual overtures), sodomy, and fellatio.49
Whereas sodomy and other criminal laws aspired to keep homo-sexuals in the closet, the sexual psychopath laws aspired to force homosexuals out in order to eradicate them. The earlier laws dis-couraged “latent” homosexuals from acting on their “homosexual tendencies” and brought the “overt” homosexual into the criminal justice system. But the sexual psychopath laws assured that overt, and sometimes even latent, homosexuals would be separated from society until they were “cured.” Over the dissents of experts such as Dr. Alfred Kinsey, some doctors reassured the authors of such stat-utes that homosexuals could be cured through methods such as psy-chotherapy, aversion therapy (electric shocks delivered to the brain), pharmacological shock (induced vomiting when exposed to homoe-rotic images), injection of hormones, cerebral lobotomies, and castra-tion.50 Except for castration, these methods were deployed,
irregu-larly, in American hospitals for treatment of homosexuals involun-tarily committed by their families or the state.51
44. Seeinfra Appendix 4. Sixteen statutes required that the offender be convicted of some crime or of a specific sex crime before holding a sexual psychopath hearing. Seeid. Seven statutes required that the offender be charged with some crime or a specific sex crime. Seeid.
45. See Swanson, supra note 43, at 217-18. Most jurisdictions did not permit the de-fendant to opt for a jury trial or guarantee the dede-fendant counsel or other assurances of criminal process. Seeid. Some jurisdictions did not even conduct a judicial hearing and committed people simply on the basis of medical affidavits. Seeid.
46. See FLA. STAT. § 800.04 (1949) (targeting defendants convicted of sodomy (the “crime against nature”), lewdness, rape, and attempts to commit those crimes when chil-dren are the victims).
47. Seeinfra Appendix 4.
48. See TAPPAN, supra note 41, at 28-29. 49. Seeid.
50. See JONATHAN KATZ, GAY AMERICAN HISTORY: LESBIANS AND GAY MEN IN THE U.S.A. 134-207 (1976) (containing copies of graphic original documents and descriptions of anti-homosexual medical procedures and treatment).
The most famous of the treatment institutions was California’s Atascadero State Hospital, which opened in 1954.52 About sixty
per-cent of the inmate population were sex offenders, including many convicted of consensual adult sodomy or oral copulation. At the be-ginning, the institution was relatively relaxed, even if ineffective in “curing” those incarcerated there. Key to the institution was control-ling inmates resistant to treatment or authority. Doctors performed a steady but small stream of lobotomies, which Dr. Walter Freeman testified helped patients lose “their fear and hate and become no-ticeably friendly.”53 The main treatment, which Atascadero
pio-neered, involved the drug succinylchloride (Anectine), a “muscle re-laxant which makes the victim unable to breathe. He feels like he’s dying. And while he lies there unable to breathe, but fully conscious, the ‘therapist’ tells him that unless he’s a good boy, and quits jerking off in the shower, or whatever, he will die.”54 This drug was used
con-tinually at Atascadero until 1969, when a visiting law student raised a scandal about its use. Some inmates were incarcerated here for only a short time, others for decades.
Registration statutes operated as another widely deployed strat-egy for exposing the homosexual. Like many other municipalities, Los Angeles required “convicted persons” remaining in the city for more than five days to register with the chief of police.55 Registration
required convicted persons to provide details of their crimes and all relevant information as to their whereabouts while in Los Angeles.56
Later, Los Angeles required the registration of all sex criminals, in-cluding those convicted of consensual anal or oral sex and lewd va-grancy, a misdemeanor.57 This requirement greatly expanded the
ambit of registration because each year hundreds of people were charged with lewd vagrancy. In 1947, California enacted a statewide registration for sex offenders patterned after the Los Angeles Mu-nicipal Registration Law.58 In 1951 and 1952, Congress considered
52. The account that follows is drawn from exposes of Atascadero in the early 1970s. See John LaStala, Atascadero: Dachau for Queers?, THE ADVOCATE, Apr. 26, 1972, at 11, 13 (LaStala was an inmate in 1955); Rob Cole, Inside Atascadero IV: Life, Liberty, and the Pursuit of Treatment, THE ADVOCATE, Oct. 11, 1972, at 5.
53. LaStala, supra note 52, at 11 (quoting Dr. Walter Freedman). 54. Id. at 13.
55. See LOS ANGELES, CAL., CODE ch. V, § 52.39(a) (1955).
56. Seeid. A convicted person who changed residences was required to notify the chief of police. Seeid. § 52.40.
57. Seeid. § 52.38(d). This section also provided that one was a “convicted person” if after 1945 the person was “convicted in any place other than the State of California of any offense which, if committed in this State, would have been punishable” under the lewd va-grancy law. Id.; seealso CAL. PENAL CODE § 647(5) (1955) (lewd vagrancy law).
bills requiring the national registration of sex offenders but failed to enact them.59 The use of registration in California and other
jurisdic-tions heightened the consequences of being out of the closet: public notoriety and perpetual wardship under the baleful eyes of the po-lice.
Even after the Miller Act, the District’s laws effectively regulated only public and not private same-sex intimacy. In 1953, in a move that reflected a more fearful understanding of the closet, Congress rewrote the District’s indecent exposure law to make it unlawful “to make any obscene or indecent exposure of his or her person, or to make any lewd, obscene, or indecent sexual proposal, or to commit any other lewd, obscene, or indecent act in the District of Colum-bia.”60 Congress intended to assure criminal prosecution of
homosex-ual acts anywhere in the District by removing the public place re-quirement for indecency, lewdness, or lewd sexual solicitation.61 By
1961, twenty-one states had removed public place requirements from their lewdness or indecency statutes.62 As a result, it became a crime
throughout most of the United States not only to engage in consen-sual sodomy in a private place, but also to suggest or propose such an idea. Many asked, how did the state expect to enforce laws against private same-sex intimacy?
2. Flushing Out the Homosexual: Spies, Decoy Cops, Raids
Most crimes come to the attention of the criminal justice system through complaints by victims, but homosexual intercourse, like prostitution, is often a crime without a complainant. For laws against consensual same-sex intimacy to be enforced, the state must effectively, as well as formally, become the complainant. When the intimacy is not displayed in public view, the state can choose to take affirmative and aggressive measures to observe the homosexual acts. New York City’s private anti-prostitution groups, assisted by its mu-nicipal police force, became the model for proactive state enforce-ment. Before World War II, these groups had concentrated on luring homosexuals into compromising propositions in toilets, parks, and theaters. Other cities acted similarly.
59. SeeAre You or Have You Ever Been a Homosexual? ONE, Apr. 1953, at 5-8. 60. Act of June 29, 1953, ch. 159, § 202(a)(1), 67 Stat. 90, 92 (codified at D.C. CODE ANN. § 22-1112(a) (1996)).
61. See H.R. REP. NO. 82-538, at 19 (1951); H.R. REP. NO. 83-514, at 4 (1953); see also 99 CONG. REC. 6207 (1953).
The period after World War II, therefore, did not innovate aggres-sive police tactics but did much to regularize and modernize them. Regulation came in most cities through the creation or reconfigura-tion of police department vice or morals squads. Vice squads con-sisted of officers committed to ferreting out sex crimes, and their productivity was measured by the number of prostitutes and homo-sexuals arrested. For example, in 1949, Philadelphia created its morals squad, and in its first year of operation, sodomy or solicita-tion of sodomy comprised almost sixty percent of the squad’s ar-rests.63 The exact operation of vice squads varied from city to city.
Vice squads in larger cities frequently consisted of dozens of officers that formed several divisions within police departments. Usually, these cities had more resources to spend on police in general and thus expressed greater alarm at the marked increase in open homo-sexuality. In smaller cities, vice operations were carried out through smaller clusters of officers.64
Anal or oral sex represented the most serious felonies for which a homosexual might be charged.65 These charges typically involved a
complainant when the intercourse resulted from force, intoxication, or relations between an adult and a minor.66 Conversely, consensual
adult intercourse often generated no complainant, or the complain-ant was a police officer, and so the police relied on their own obser-vation.67 Police regularly surveyed public cruising areas frequented
63. See BUREAU OF POLICE, CITY OF PHILADELPHIA, ANNUAL REPORT 31 (1950) (listing 514 total arrests, including 287 arrests for sodomy or solicitation, 49 for rape and indecent assault, 31 for public indecency, and 28 for crimes with minors); cf. LOS ANGELES POLICE DEP’T, 1952 ANNUAL REPORT 33 (listing 10,321 total arrests for 1952, including 1689 for “sex perversion” and 2087 for prostitution).
64. See Dal McIntire, Tangents, ONE, Feb. 1956, at 12. Portland’s “Buster Squad,” for example, specialized in breaking up “rings” of men having sex with boys.
65. See Jon J. Gallo et al., The Consenting Adult Homosexual and the Law: An Em-pirical Study of Enforcement and Administration in Los Angeles County, 13 UCLA L. REV. 643 (1966) (studying Los Angeles County arrests and prosecutions). This article is consid-ered to be the most detailed study of police enforcement techniques during this period.
66. Seeinfra Appendix 1B.
67. See, e.g., People v. Spaulding, 254 P. 614, 615 (Cal. Dist. Ct. App. 1927) (“[M]erely engaging in a scheme for the purpose of detecting, exposing, and punishing crime does not constitute one an accomplice.”). Decoys were inappropriate for enforcing the serious felo-nies, because the law required penetration. Hence, the officer would not be able to obtain evidence without becoming an accomplice in the forbidden act, i.e., inserting his penis in the defendant or receiving the defendant’s penis in him.
Consider the following arrest and complaint figures for sex crimes in New York City for 1958-1966, compiled from the New York City Police Department’s annual reports:
Arrests (Complaints) Arrests (Complaints) Arrests (Complaints) Non-Rape Sex Felonies Sex Misdemeanors Sex Offenses/Degenerates
1958 419 (468) 2103 (2693) 1142 (776)
1959 475 (494) 2206 (2845) 937 (642)
1960 436 (476) 2341 (2829) 714 (483)
1961 443 (468) 2313 (2800) 790 (567)
by men: bars, restrooms, subways, parking lots, steambaths, and beaches.68 In the larger cities, officers maintained stakeouts to view
intercourse from hidden observation posts.69 Two police officers
typi-cally huddled in or above a toilet booth and watched oral intercourse by men in adjoining booths.70 Later, police escaped the stench of the
latrine through use of surveillance cameras. Furtive observation of public restrooms—or tearooms as they were called by denizens—had been New York City’s standard sodomy enforcement technique since the turn of the century. As the century wore on, many cities engaged in similar practices. Modest-sized cities as diverse as Palo Alto, Cali-fornia; Oklahoma City, Oklahoma; and Ann Arbor, Michigan netted scores of “perverts” by staking out public restrooms.71
A more complicated modus operandi involved police observation of suspicious conduct between two men. Upon observance of suspi-cious conduct, the police followed and spied on the men until they observed illegal activity. In one case, Officers Grimm and Beaudry of the San Diego vice squad observed Eldridge Rhodes, a black man suspected of propositioning servicemen, walking with Thomas Earl, a white man.72 The police followed the suspects to a hotel. When the
men went inside a room, the police listened outside until they heard the sounds of kissing and a squeaking bed. Grimm then peeked through an opening allegedly left by the cracked door and witnessed the men naked and embracing on the bed. Assisted by a hand-hold from Beaudry, Grimm then looked through the glass transom above the door. Beaudry used a stool to observe. Grimm witnessed the commission of a felony, oral sex. The officers intrepidly broke into
1963 430 (NA) 2332 (NA) 892 (NA)
1964 433 (434) 2266 (2288) 760 (669)
1965 440 (456) 2256 (2834) 799 (749)
1966 425 (517) 2275 (3856) 363 (402)
“Non-Rape Sex Felonies” included forcible sodomy and sodomy with a minor; “Sex Misde-meanors” included consensual sodomy; “Sex Offenses/Degenerates” included homosexual overtures only. Note that there were usually many more “degeneracy” arrests than com-plainants.
68. See Gallo et al., supra note 65, at 707 n.138. This study examined 493 felony ar-rests against men having sex in the following locales: public restrooms, 274; vehicles, 108; private residences, 24; jail, 18; public parks, 17; steambaths, 15; public beaches, 11; other or unknown, 26. Seeid.
69. Seeid. at 707-09. 70. See id.
71. See Dal McIntire, Tangents, ONE, Apr.-May 1956, at 14 (noting that a Palo Alto police stakeout of a depot restroom netted 23 men, including seven Stanford students and a teacher, and charged eight with felony sex perversion, or oral sex); Dal McIntire, Tan-gents, ONE, Feb. 1958, at 18 (describing an Oklahoma City stakeout of a Lincoln Park Zoo restroom that netted four men charged with committing a crime against nature, and six with unidentified charges); Dal McIntire, Tangents, ONE, May 1960, at 19-20 (discussing an Ann Arbor police six-month stakeout of University of Michigan restrooms resulting in 26 arrests, including 14 students and a professor).
the room and arrested Rhodes and Earl for violation of California’s oral copulation law. The defendants were convicted in a nonjury trial and certified as sexual psychopaths; as such they were committed for indeterminate sentences at Atascadero State Hospital.
Less serious sex crimes (usually misdemeanors) such as at-tempted sodomy, solicitation, indecent liberties with a child, inde-cent exposure, lewd conduct, and disorderly sexual conduct were sometimes discovered through spying and observation, but typically required more direct police involvement through a decoy.73
Gener-ally, reasonably attractive policemen operated as decoys and loitered at a homosexual hangout to arrest men who proffered explicit passes such as verbal invitations or fondling of the decoy’s genitals.74 Decoys
frequently operated as the sole method for enforcement of the most popular anti-homosexual misdemeanor laws, such as California’s lewd vagrancy law, New York’s disorderly conduct law, and the Dis-trict’s lewd solicitation law.75
Defendants repeatedly complained that decoys behaved provoca-tively and misrepresented the precise language of the conversation.76
Lawyer Frank Wood, who defended many accused homosexuals in California, described the “usual practices”:
[S]omeone will strike up a casual conversation with you and then try to get you to say one of the magic words—maybe a nice old An-glo-Saxon word—or some word which we all know pertains in one manner or another to sex. All you have to do is say the magic word and that someone who struck up the conversation will be trans-formed into a vice officer and his brother officer will startlingly ap-pear from nowhere and swear that with his excellent pair of ears he was able to overhear everything that went on.77
Sometimes the vice officers were willing to forget the “magic words” in return for cash, but usually the words meant an overnight trip to jail, followed by a plea agreement. In California, for example, defen-dants usually agreed to plead to simple indecency to avoid conviction of lewd vagrancy, which triggered California’s registration require-ments.78
Sometimes decoys acted aggressively. Dale Jennings of Los An-geles claimed that he was followed by “a big, rough looking
73. See Abraham Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 YALE L.J. 1149, 1163-65 (1960); Richard C. Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 YALE L.J. 1091, 1093 (1951); Harold Jacobs, Note, Decoy Enforcement of Homosexual Laws, 112 U. PA. L. REV. 259, 259-60 (1963).
74. See Jacobs, supra note 73, at 259-60. 75. Seeid.
76. See, e.g., JESS STEARN, THE SIXTH MAN 168 (1961).
ter” who tried to strike up a conversation with him.79 Jennings stated
that he feared robbery and thus tried to shake the man, but to no avail.80 The man forced his way into Jennings’ apartment and
pro-ceeded to undress.81 According to Jennings’ account, the thug
in-sisted that Jennings sit with him and urged Jennings to let his hair down and relax.82 The thug said he’d been in the Navy and “all us
guys played around.”83 The account continued:
I told him repeatedly that he had the wrong guy; he got angrier each time I said it. At last he grabbed my hand and tried to force it down the front of his trousers. I jumped up and away. Then there was the badge and he was snapping the handcuffs on . . . .84
It is difficult to determine how much of Jennings’ account is repre-sentative of police behavior, or is even truthful. Nonetheless, a jury that had no reason to be sympathetic believed Jennings’ story.85
Similarly, fact-finders determined that Pittsburgh’s vice squad en-trapped and framed many victims in order to shake money out of them.86
Police used the “jump raid” as a third tactic. Employed against houses of prostitution earlier in the century, in the postwar period police used the raid to disrupt homosexual socialization, usually in clubs and bars and sometimes in baths or parks. Raids in New York, San Francisco, and Los Angeles—the most popular homosexual cit-ies—received the most publicity, but smaller urban centers used the jump raid because it proved less expensive than stakeouts and decoy operations. If decoy use was painstaking retail enforcement of anti-homosexual misdemeanor laws, the jump raid was by comparison cheaper wholesale enforcement. Unfortunately for the police, raids usually did not generate felony or even misdemeanor convictions, be-cause the patrons could not be caught having sex or soliciting sex. Instead, police usually charged homosexuals with broadly phrased municipal offenses or state misdemeanors such as disorderly conduct or lewdness, offenses that could mean virtually anything.87
By the 1950s, police were deploying the jump raid to arrest or harass larger numbers of homosexuals then had been the case before
79. Dale Jennings, To Be Accused Is to Be Guilty, ONE, Jan. 1953, at 11-12. 80. Seeid. at 12.
81. Seeid. 82. Seeid. 83. Id. 84. Id.
85. Seeid. at 13.
86. See Dal McIntire, Tangents, ONE, Sept. 1955, at 9.
World War II. A 1955 raid of the Pepper Hill Club in Baltimore re-sulted in 162 arrests for disorderly conduct based on observations of same-sex hugging and kissing.88 A raid on Hazel’s Bar near Redwood
City, California, resulted in ninety arrests (seventy-seven men, ten women, and three teens) on vagrancy charges and one arrest—bar owner Helen Nickola—for permitting lewd dancing without a li-cense.89 A 1960 raid on the Tay-Bush Cafe in San Francisco resulted
in 103 arrests (eighty-nine men and fourteen women) for same-sex dancing and for disorderly conduct.90
The threat of police raids and surveillance kept most gay people away from homosexual hangouts and thus made such large arrests unusual. Miami’s “E” Club raid on April 15, 1960, demonstrates the more typical scenario:
About 35 people were scattered around the U-shaped bar—the usual grand piano that doubles as a table—and the long booths that run from one end of the room to the other.
. . . One bartender had just finished saying to the other, as they both met at the cash register to ring up their sales, “Gee I hope business doesn’t drop off now that the season is over,” when a man in a black suit walked in and stood near the door. Quickly five oth-ers moved to strategic positions around the bar. It happened so fast that no one really took notice. Once the men were scattered around the bar, the “leader” said over the voice of Mr. [Johnny] Mathis, “OK, all drinks off the bar. Everyone here is under arrest.” Several quiet curses were heard, and someone with bleached hair said to a friend, “Damn, not only is my life ruined, but the whole evening is spoiled.” It was the last joke of the evening; the “E” club had just been raided.91
Police arrested the patrons for disorderly conduct “for being in a place frequented by homosexuals,”92 a fact established by the
fol-lowing intelligence: “Habitués of the place were reported to embrace each other, wear tight-fitting women’s pants, and bleach their hair.”93 Police released the patrons for $250 bond and the owner for
$750 bond, and the Miami News published a feature story on the raid that contained their names.94 Reporter Walter Tucker, Jr.,
ex-plained that “the public should know who these people are.”95
The Tampa, Florida, vice squad’s June 1957 raid on Jimmie White’s Tavern illustrates several additional features of the jump
88. See Dal McIntire, Tangents, ONE, Dec. 1955, at 12. 89. See Dal McIntire, Tangents, ONE, Apr.-May 1956, at 14. 90. See Dal McIntire et al., Tangents, ONE, Dec. 1961, at 16. 91. Charles K. Robinson, The Raid, ONE, July 1960, at 26. 92. Id.
raid.96 Police arrested twelve women patrons for “mannish” dress.97
While police used spies and decoys almost exclusively against homo-sexual men, they used the raid against lesbians as well. Lesbian bars and clubs existed before World War II in cities as different as Buffalo and New York City, and they became more common after the war. Because lesbians did not often engage in public sex in these es-tablishments, and because the police had insufficient female officers to act as decoys, the police found it difficult to use felony and misde-meanor charges against lesbians. Instead, police relied upon the more general disorderly conduct and vagrancy prohibitions found in most state codes and municipal ordinances. Light penalties such as fines and short detentions often found enforcement only in municipal rather than state courts. Such minimal penalties, which triggered neither a right to a jury trial nor much judicial oversight, made such ordinances the perfect instruments for harassing lesbians.
Another legal justification for harassing lesbians was laws crimi-nalizing the wearing of attire not of one’s sex. Dozens of municipali-ties had ordinances making cross-dressing a criminal offense.98 New
York and California had statutes making it illegal to appear publicly in a “disguise” or “masquerade.”99 Although not targeted toward
cross-dressing, police regularly used these statutes to harass or ar-rest cross dressers. New York reportedly followed a “three-piece” rule: a woman in trousers would not be charged under the disguise statute as long as she wore three pieces of women’s clothing.100
Cross-dressing laws applied to men as well. Detroit targeted only men,101 but the same ordinance made it unlawful for women as well
as men to use public restrooms designated for the opposite sex.102
The city of Miami made cross-dressing a regulatory fetish. A 1952 ordinance forbade “female impersonators,” and a 1956 ordinance made it a crime for anyone to appear in a “dress not customarily worn by his or her sex.” (These and other Miami ordinances of the period are reproduced in Appendix 5 to this Article.)
96. See Dal McIntire, Tangents: Trouble in Tampa, ONE, Oct.-Nov. 1957, at 18-19. 97. Id. at 19.
98. I have copies of cross-dressing ordinances from places such as Cedar Rapids, Iowa; Charleston, West Virginia; Cheyenne, Wyoming; Chicago, Illinois; Columbia, Mis-souri; Dallas, Texas; Denver, Colorado; Detroit, Michigan; Houston, Texas, and many oth-ers. See Eskridge, supra note 19, app. 6 (listing references). Miami’s ordinance, excerpted infra Appendix 5, is typical of municipal cross-dressing laws.
99. See, e.g., People v. Gillespi, 202 N.E.2d 565, 565 (N.Y. 1964) (finding the defen-dant guilty of the statute for wearing women’s clothes and makeup).
100. Seegenerally Nan D. Hunter, Gender Disguise and the Law (1990) (unpublished draft, on file with author).
101. See DETROIT, MICH., CODE § 39-1-35 (1944) (deeming it illegal “for any member of the male sex to appear in or upon any street . . . or other public way or place or in, upon or about any private premises frequented by or open to the public in the dress of the opposite sex”).
In the 1950s, lesbians, gay men, and gender benders were at the mercy of the state if they sought to express their sexual or gender-role preferences. Virtually anything they did was against the law: consensual homosexual intercourse violated sodomy laws, which were serious felonies everywhere but New York and punishable by many years in prison or a mental institution; friendly invitations to engage in intercourse violated state laws making it a crime to at-tempt a felony as well as state and municipal solicitation laws; dancing, kissing, or even holding hands with someone of the same sex was considered by police to violate misdemeanor laws regulating private or public lewdness, indecency, or disorderly conduct; cross-dressing violated the law of two states and dozens of municipalities. For an example of the comprehensive regulatory regime barricading the homosexual in the 1950s, consult Appendix 2A of this Article, which lists the criminal laws and ordinances applicable to people in San Francisco in 1950. A similar exercise, generating a shorter list, could be accomplished for residents of all the major cities in the United States in the 1950s.
Not only was any kind of expressive conduct illegal, but there was also a tangible danger of being arrested for conduct that was consen-sual and even private. Solicitation for an intimate encounter led to arrest if the person solicited were a decoy cop. Intercourse led to ar-rest if police were watching through a peephole, from an adjoining stall, or through a vent. Kissing, handholding, and cross-dressing led to arrest if undercover police were watching or raided the establish-ment. Because anything one did could be discovered and made the basis for arrest, and because many people valued these means of ex-pression a lot, the city was in the position of determining ex ante, rather than ex post, how much sex crime it would have. By investing a great deal of money in vice squads and turning them loose on ri-diculously easy-to-catch homosexuals, the city could assure itself of tons of arrests for sex crimes. By investing less, the city could assure less sex crime. In short, the level of arrests for homosexual conduct was substantially endogenous to local political and cultural proc-esses. It is worth exploring how those processes operated for the half-generation after World War II.
3. Anti-Homosexual Panics and Manias
2000 for most of the 1950s.103 A similar pattern was characteristic of
San Francisco and Los Angeles, both of which had a big postwar in-crease; San Francisco showed another big spike in 1960-61.104 The
District of Columbia’s 1970 arrest figures topped 1950s numbers, which were much higher than those from the 1930s, a pattern pres-ent in many southern cities.105
In understanding the sodomy-arrest data, one should consider that most prosecutions stemmed from arrests for sex between an adult male and a male or female child. Approximately one-fifth in-volved male-female sex, usually coerced by the male. I estimate that approximately twenty to twenty-five percent of prosecutions arose from consensual same-sex adult intimacy.106 Even discounted, the
array of felony arrests for consensual same-sex intimacy is impres-sive. The figures greatly increase when arrests for lewd vagrancy (California), indecent exposure (Baltimore and other jurisdictions), and disorderly conduct (New York City and most other jurisdictions) are included. I estimate that the number of homosexuals arrested for sexual misdemeanors and offenses was on average about twenty times the number arrested for sexual felonies.107 Given such a
multi-plier, it appears that each year law enforcement officials arrested tens of thousands of Americans and accosted many others for ex-pressions of same-sex intimacy toward people believed to be
103. Seeinfra Appendices 1A, 1C. 104. Seeinfra Appendix 1A. 105. Seeinfra Appendix 1A.
106. The suggestion for these numbers originated from my analysis of District sodomy complaints, recounted in Appendix 1A. Sodomy arrests, for which I have no numbers, would yield lower figures for sex with minors or with women. To roughly determine whether this suggestion could be generalized, I read all the cases reported by the West National Reporter System under the category “Sodomy” for the years 1946 to 1969. The results were:
Man-Man (W-W) Man-Woman Man-Boy Man-Girl
Total 93 (2) 72 121 57
Calif. 23 (0) 30 22 9
Because this sample is skewed by appellate court selection bias and the vagaries of the West reporting system, I cannot determine absolute percentages. I do conclude, however, that during this period consenting same-sex couples did not account for most sodomy ar-rests.
107. For 1950s New York City, yearly arrests for sodomy ranged between 100 and 200 (Appendix 1A) while arrests for degeneracy were typically 10 to 20 times those figures (Appendix 1C). The San Francisco record of sex offense arrests between 1945 to 1950 sug-gests a multiplier of up to 20. See Appendix 2B.
ested partners. Officers arrested much smaller numbers, proportion-ally, of heterosexual men for raping, abusing, molesting, or harass-ing women, and those arrested were much less likely to be prose-cuted, convicted, or to serve jail time than those accused of consen-sual same-sex intimacy.108
The large number of arrests during this period were a direct re-flection of society’s fear of the homosexual—the extent to which the polity saw the closet as straight-threatening and determined to open the door and cast out its dangerous inhabitants. The aggregate fig-ures do not reflect another feature of this grande peur, namely, the way in which a single event would spontaneously spur an anti-homosexual panic or (if over a longer period of time) mania in a lo-cality or state. Consider a few examples. During the summer of 1959, when police found the body of twelve-year-old Merrill Bodenheimer in an icebox, Houston, Texas, whipped itself into the greatest “sex-fiend hunt” in its history.109 The police first focused on a man
previ-ously convicted of molesting girls (society believed all child moles-ters, including those assaulting girls, to be homosexuals). They then arrested seven African-American males, ages thirteen to seventeen, and extracted confessions that they had sexually abused and then killed the white boy. Some of the accused immediately recanted, stating that the confessions had been beaten out of them, and four of the defendants had witnesses placing them far from the assault at the time that it occurred. The decedent’s mother slowed the Houston panic by writing an open letter denouncing the hate-filled rhetoric of the witch hunters: “People who are oppressed and deprived by soci-ety hit back. Finding my son’s murderer will not keep alive some child who now lives—more murderers will be bred by the conditions which bred his murder.”110 The Houston panic reveals how anxiety
about homosexuality, pedophilia, sexual violence, and interracial sexuality could interact combustibly.
The most famous, and least likely, location for an anti-homosexual panic that in turn triggered a longer-run mania was Boise, Idaho.111 On October 31, 1955, a panic began with the arrest of
108. See Ralph Slovenko & Cyril Phillips, Psychosexuality and the Criminal Law, 15 VAND. L. REV. 797, 800 n.9 (1962) (noting that in 1960 New Orleans, 27% of the rape cases were prosecuted compared to 60% of the crime-against-nature cases; none of the rape cases resulted in convictions, while 20% of the crime against nature cases did bring con-victions). The New York City degenerate incarceration rate towered 30 times above that for defendants convicted in the Magistrates’ Courts for other offenses. Seeinfra Appendix 1C. Although only episodic data exists, the incarceration rate appears to have been higher than any other sex offender charges with offenses rather than misdemeanors or felonies.
109. Dal McIntire, Tangents, ONE, Apr. 1960, at 15. 110. Id.
three blue-collar men for “unnatural” relations with several boys who, according to Ada County probation officer Emery Bess, com-prised a “homosexual ring” of as many as 100 boys.112 Although
ap-parent from the beginning that the situation involved not simply boys but experienced male prostitutes, the community nonetheless whipped itself into a child-protection frenzy, resulting in an aggres-sively investigated and prosecuted scandal. The court sentenced one defendant to life in prison after he pled guilty to sodomy and lewd conduct with a minor. Another defendant, who cooperated with the prosecutor by identifying other homosexuals and boy prostitutes, got a suspended sentence. In November and December, the police ar-rested more homosexuals, some of them prominent citizens. Mayor Russ Edelfsen later said that 1472 people were interviewed in con-nection with the homosexual prosecutions.113
By the time the mania ended in early 1957, there had been tragic consequences for virtually all concerned. At least fourteen men pled guilty to charges of sodomy or lewd behavior, and juries convicted one and acquitted at least two.114 Eight received punitive sentences
of between five years and life in prison, and at least one of the proba-tioners ended up serving seven years in prison.115 A number of
clos-eted homosexuals quietly decamped. Even the boys of Boise suffered from the panic. William H. Baker, one of the hustlers whose sworn statements triggered the scandal, killed his father six weeks later and a jury convicted him of manslaughter.116 His ten-year sentence
for patricide equaled the sentence received by one of the original homosexual defendants, a clothing store clerk.
From 1952 through 1964, several manias swept Florida, which featured a unique intrastate combination of urban-cosmopolitan ar-eas such as Miami and Dade County and a heavily rural culture in North Florida, along with intermediate locales such as Tampa, Tal-lahassee, and Gainesville. Because Miami and Miami Beach fea-tured the largest and most diverse metropolitan areas, and thus harbored more radical subcultures, anti-homosexual hysteria origi-nated in these cities.
In late 1953, Miami Beach Police Chief Romeo Shephard re-sponded to complaints that the beach had become a hangout for men who behaved in a feminine manner, sported “girlish” hairstyles, and “pranced around” in droves wearing “Bikini-type” swimsuits.117
112. GERASSI, supra note 111, at 2. 113. Seeid. at 126.
114. Seeid.
115. See Dal McIntire, Tangents, ONE, Jan. 1956, at 12. 116. See GERASSI, supra note 111, at xvi-xvii.
